Thursday, May 04, 2006

Copyright is Not a Transitory Tort

In a comment on Monday’s posting about infringement by the Burundi government, reference was made to the possibility of a cause of action for a “transitory tort” under a mischaracterization by the late Professor Melville Nimmer, and swallowed, hook, line, and sinker in London Film Productions, Ltd. v. Intercontinental Communications, Inc., 580 F. Supp. 47 (S.D.N.Y. 1984), which asserted diversity jurisdiction under 28 U.S.C.A. §1332(a)(2) over foreign acts of copyright infringement. In that case, the court adjudicated alleged infringement by an American corporation in several South American countries of a British corporation’s copyright. The work was in the public domain in the United States. Judge Carter, based jurisdiction on copyright allegedly being a “transitory tort,” and offered the following inconsistent policy justifications for asserting jurisdiction:

The Court has an obvious interest in securing compliance with this nation’s laws by citizens of foreign nations who have dealings within this jurisdiction. A concern with the conduct of American citizens in foreign countries is merely the reciprocal of that interest. An unwillingness by this Court to hear a complaint against its own citizens with regard to a violation of foreign law will engender, it would seem, a similar unwillingness on the part of a foreign jurisdiction when the question arises concerning a violation of our laws by one of its citizens who has since left our jurisdiction.The Court’s interest in adjudicating copyright infringements by foreign citizens that occur in the court’s district is statutorily provided for by Congress in Section 501 of title 17 USC and in 28 USC 1338(a). Nothing a foreign court could or could not do can affect that power. Conversely, if an American infringes a British work in Britain, the British courts will hear the claim because they too would be doing so pursuant to a domestic statute. British courts certainly would not decline to hear such a case because at some earlier time a U.S. court had refused to hear a case against an American citizen for infringement of a British work occurring in Chile. In London Film Productions, there was no U.S. copyright violation because the work was in the public domain here. Should we expect a British court to hear a case brought by a U.S. citizen involving an alleged infringement of copyright in South America by a British citizen when the work is in the public domain in England merely because the bad boy was British? If so, we would have been sorely disappointed: at the time of the London Film Productions decision, English courts declined jurisdiction over British citizens’ claims of overseas infringement against other British citizens even where the work was still protected by copyright in England.

Diversity jurisdiction was supposedly justified by copyright infringement being a “transitory tort.” Why is copyright allegedly a transitory tort? Because it was declared that copyright is an incorporeal form of property, and therefore “has no situs apart from the domicile of its proprietor.” Presumably, if the proprietor moves, the situs of the property moves too. But if the proprietor doesn’t move, the situs must remain with the proprietor; in London Film Productions this meant in England, indicating England not the United States, was the appropriate jurisdiction. Under this reasoning, a U.S. court would never have jurisdiction to hear a claim of infringement of a foreign copyright unless the foreign copyright owner was domiciled in the United States. Copyright is not a personal right which attaches to the individual and follows him or her wherever the individual travels. Instead, it is a territorially derived property right which exists by virtue of a national grant. Whether another nation decides to grant a similar property right is a matter for the legislation in each nation. Transitory torts are personal rights, not property rights. This characterization confuses the incorporeal nature of the copyright property right with personal rights; the two are quite different and the consequences quite different. As a property right rather than a personal right, copyright cannot be a transitory tort.Additionally, the history of transitory torts also reveals that it is incorrect to describe copyright being a transitional tort. The history behind the local versus transitory distinction is an ancient one in Great Britain. The most critical point is that the issue arose in the context of venue, not subject matter jurisdiction. The distinction was originally drawn in order to determine whether a case should be brought in the county where the event occurred or in some other country. Venue was mandatory in the county where the event occurred when the jury needed to have knowledge of particular facts; where no such knowledge was necessary, plaintiff was permitted to bring suit in any county over which personal jurisdiction against the defendant would lie.Although fictions were later developed permitting suits to be brought even where local knowledge was required, in the case of copyright, this was not extended to causes of action that arose outside of England. Until England’s adherence to the Brussels Convention on Jurisdiction and Enforcement in Civil and Commercial Matters in 1982 and subsequent English acts that implemented that convention, English courts uniformly refused to hear cases of infringement that occurred overseas, taking the position that copyright infringement was a local and not a transitory tort. The basis for the court’s refusal to hear the case was the distinction between local and transitory torts. Finding that copyright is a local and not a transitory torts, the court held it was without jurisdiction to hear a complaint about infringement that would occur (if at all) in the United States. It is noteworthy that the very recent change in English courts’ willingness to hear claims of overseas infringement, see Pearce v. Ove Arup Partnership Ltd., [1999- 1 All. Er. 769, came for reasons entirely associated with adherence to the Brussels Convention, not because of a change in the characterization of the cause of action. It is completely wrong to assert that copyright is a transitory tort.

The Second Circuit has seemingly disavowed London Films Productions’ approach, rejecting plaintiff’s reliance on that opinion in Murray v. BBC, 82 F.3d 287, 293 (2d Cir. 1986). with the dismissive remark: “We are, quite frankly, at a loss to see how this lawsuit has any but the most attenuated American connection,” a comment that applies even more strongly to London Films.

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This is a personal blog, not a Google blog. It is about my book Moral Panics and the Copyright Wars, published by Oxford University Press. Please don't attribute anything in the blog or the book to Google, which employs me.